Hamilton (a pseudonym) v R

Hamilton (a pseudonym) v R - [2020] NSWCCA 80 - NSWCCA 2020 case summary — Zoe

Judgment

MACFARLAN JA: In early 2019 the applicant (for whom the pseudonym "Hamilton" has been adopted) was tried before a judge and jury over a period of approximately three weeks on 10 charges of offences under s 61M(2) of the Crimes Act 1900 (NSW) of aggravated indecent assault of three of his five children. His children are identified in this judgment by reference to their order of age. The First, Third and Fifth children were the complainants.
The jury returned verdicts of guilty on each charge and the applicant was subsequently sentenced to an aggregate head sentence of four and a half years imprisonment, with a non-parole period of two years and eight months. The trial judge granted him bail pending his appeal. The trial was conducted before his Honour Judge Williams SC but pre-recorded evidence was taken before her Honour Judge Traill late in 2018.
The grounds upon which the applicant seeks to appeal are set out below. The Crown submitted that none of them involve a question of law alone and that the applicant accordingly requires leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of each. As the applicant did not contest that submission and whether or not it is correct it does not affect the outcome of the applicant's challenge to his conviction, it is convenient to proceed on the basis that leave is required. Furthermore, as the applicant did not, through his trial counsel or otherwise, seek at his trial any direction as to, or take any issue with, any of the matters sought to be relied upon in Grounds 1 and 2, he requires leave to rely upon those Grounds under r 4 of the Criminal Appeal Rules. Ground 1: The trial miscarried as a result of the jury not being warned as to the unavailability of tendency reasoning. Ground 2: The trial miscarried as a result of the admission and use of "bad character" evidence, including: a. The Crown Prosecutor's cross-examination and closing address with respect to the applicant's prior convictions for common assault and related issues concerning his bad character; b. The nature, extent and manner in which the "bad character" evidence was adduced; and c. The directions to the jury in relation to bad character. Ground 3: The verdicts of the jury are unreasonable and cannot be supported having regard to the evidence.
Counts 1, 2 and 3 in the Indictment related to the First Child, a daughter, who was aged 15 at the time of the alleged offending. Counts 4 to 8 related to the Fifth Child, a son, who was aged 6-7 at the time of the alleged offending and counts 9 and 10 related to the Third Child, again a son, who was aged 11-12 at the time of the alleged offending.

[4]

The Crown case

The offences were alleged to have been committed in the period November 2014 to February 2016 whilst the applicant lived with his wife and their five children in rental accommodation. The family planned to move on 30 January 2016 into a house they had built or rebuilt in a nearby suburb.
The First Child gave evidence that on three occasions the applicant got into bed with her and rubbed her vagina near her "vagina hole" in a "pulsing" motion (counts 1 to 3). On one of these occasions, her mother came into the room and found the applicant in bed with the child. The child said that when asked by her mother what had happened, she said nothing because she was afraid that if she told her mother the truth, her mother would have confronted her father and he could have reacted violently.
The First Child did not tell anyone about the incidents until she told her mother whilst the family was on an outing to a Thai restaurant to celebrate the Third Child's birthday in October 2016.
The Fifth Child gave evidence that he was indecently assaulted by the applicant whilst he was naked. He said that on the first occasion the applicant touched (or "squinched") his bottom after he got out of the shower (count 4). In relation to counts 5 and 6 he gave evidence that the applicant had touched his bottom and penis simultaneously after he got out of the shower and, in relation to counts 7 and 8, he said that again the applicant had simultaneously touched his bottom and penis.
The Fifth Child gave evidence that he made immediate complaint to his mother on each occasion. In her evidence, the mother said that she recalled complaints being made by her children about the applicant touching the Fifth Child's bottom but it was only after the Fifth Child's more formal disclosure much later that she "put it all together" and realised that the earlier complaints had been serious.
The Third Child gave evidence that the applicant had grabbed his penis while he was drying himself after getting out of the shower (count 9). He also said that the applicant had grabbed his penis once while he was half naked and in the process of getting changed (count 10).
The Third Child first disclosed what he said had been done to him on 21 September 2017 in a meeting with a school counsellor, his mother, the First Child and the Second Child. The Third Child gave evidence that when he was told that the First and Fifth Children had made allegations against their father, he started to cry and said that it had happened to him too.
There was also evidence from a number of witnesses that the applicant often stood around in the bathroom while his sons showered.
The Crown led limited context evidence of violent and volatile behaviour of the applicant (including three videos depicting the applicant interacting with his children) to seek to explain the reluctance of the complainants to make contemporaneous complaints. This evidence included evidence of an incident (the "Rugby Ball Incident") which occurred on 29 January 2016 and led to the applicant's arrest and eventual conviction in the Local Court of the common assault of his wife and the Fifth Child. The Crown case was that the applicant intentionally trod on the Fifth Child's arm and head and then threw a football into the mother's chest, at a time when she was recovering from breast reconstruction surgery. Evidence of the incident was also pressed by the Crown as character rebuttal evidence once the applicant indicated that he intended to rely on evidence of his good character.
The Crown also led evidence from the Third and Fourth Children of indecent assaults by the applicant on the Fifth Child. Due to differences in their descriptions of the incidents from that given by the Fifth Child of the assaults the subject of counts 4 to 8, the Crown contended that this was not evidence of any of the acts charged in relation to the Fifth Child but evidence of other uncharged assaults on the Fifth Child that was admissible as tendency evidence. Although such evidence was ultimately admitted on the basis referred to in [13] above, the trial judge decided that it could not be used for tendency purposes.
On the other hand, defence counsel relied upon the differences in descriptions by the Third, Fourth and Fifth Children of assaults on the Fifth Child as adversely reflecting on the credibility of those children and sought to rely on such inconsistencies in support of his case that the allegations against the applicant were concocted on the initiative of his wife. Defence counsel sought admission of the evidence for this reason but resisted it being admitted as "tendency evidence".
As described in the applicant's submissions on appeal, the defence case at trial, which was advanced through its cross-examination of Crown witnesses and witnesses called in its own case, was that the complainants had a common motive to fabricate the allegations. The motive arose from extreme animosity that their mother was alleged to bear towards the applicant and the consequent prospect that she had "poisoned the well" insofar as her children were concerned, with the result that they falsely accused the applicant of criminal misconduct. Defence counsel emphasised that the children's complaints were only made known outside the family after their mother commenced Family Court proceedings against the applicant in March 2016 following the "Rugby Ball Incident".
In explaining why the defence did not seek separate trials in relation to the counts concerning each of the complainants, defence counsel said that the defence had looked at all of the evidence, particularly the evidence of the Third and Fourth Children the subject of the Crown's tendency application (see [14] above) and "concluded that tactically all that evidence can go in, in the trial" because it was so inconsistent that "no reasonable jury in our view would accept it".

[5]

Ruling on tendency evidence

In November 2018, well prior to the commencement of the trial before Williams DCJ in 2019, the Crown served a tendency evidence notice under s 97 of the Evidence Act 1995 (NSW), revising an earlier notice served in June 2018.
The notice advised the applicant that the Crown sought to rely on the evidence concerning the counts relating to the Third and Fifth Children as being "cross-admissible as tendency evidence for their own counts and for each other". Secondly it advised that the Crown sought to rely upon the evidence of the Fourth Child as tendency evidence in respect of the counts relating to the Fifth Child and on the evidence of the Third Child relating to uncharged acts also as tendency evidence in respect of the counts concerning the Fifth Child. The notice did not include reference to the First Child, who is the applicant's daughter.
The notice described the tendencies sought to be proved as follows: 1. [The applicant's] tendency to have a sexual interest or inappropriate interest in his male children under the age of 13. 2. His tendency to act on that interest, namely to indecently touch his male children on the buttocks and the penis as they were getting in or out of the shower, or otherwise getting dressed.
In his judgment of 20 February 2019 the trial judge recorded the parties' submissions concerning this application of the Crown to adduce tendency evidence. His Honour summarised defence counsel's submission as follows as to how the evidence, if admitted for a tendency purpose, would have a prejudicial effect on the applicant's case which was not substantially outweighed by its probative value (see s 101(2) of the Evidence Act): "[Defence counsel] identified what was said to be the real risk of actual prejudice in this case, as arising [in] a number of ways. Namely, the tendency evidence would invite the jury to conclude that there were many more assaults on [the Fifth Child] than actually disclosed by [the Fifth Child], because the Crown can only reconcile [the tendency evidence secondly referred to in [19] above] in that way, due to its inherent contradictions with [the Fifth Child's] evidence. If this is the case, the evidence may evoke an irrational or emotional response quite disproportionate to the evidence. The jury may devalue the good character of the accused if they come to such a conclusion as invited by the Crown in relation to the tendency evidence. And the evidence would be likely to cause confusion within the jury as to the scope of its application, rather than it simply being led as part of the surrounding circumstances of the case, as disclosed by each witness."
Whilst his Honour considered that the evidence would have significant probative value for the purposes of s 97 of the Evidence Act, as a matter of discretion he ruled against its use for tendency purposes for the following reasons: "…, having now had the opportunity to consider the evidence given by each of the complainants and the other children, and the mother, I am firmly of the view that there is a sound basis for excluding the evidence in the exercise of one or more of the discretionary grounds to which I have referred [ss 101, 135 and 137 of the Evidence Act]. The prejudicial effect of a tendency direction in a way submitted by [defence counsel], is such that under s 101 of the Evidence Act, the probative value of the proposed tendency evidence does not substantially outweigh such prejudicial [effect] that it may have. There is a danger under s 135, in my view, of unfair prejudice and the jury being misled or confused by a tendency direction in relation to this particular part of evidence which is already in as context, and partly as character evidence, or evidence going to the issue of character. It would, in my view, be at least misleading or confusing to attempt to have the jury compartmentalise the evidence as tendency evidence separately. The way in which this case has been conducted also fortifies my view that admission of the proposed evidence as tendency evidence, would be such, that its probative value was outweighed by the danger of unfair prejudice to the defendant. This case has, unfortunately or otherwise, evolved into a somewhat detailed exposition of the number of incidents involving the accused and various members of his family and has involved, so far, significant evidence in-chief and cross-examination from each of the children and the mother, as to events far beyond the particular assertions involving the ten counts on the indictment. The task of the jury in focussing on whether the Crown has proved beyond reasonable doubt the elements of each or any count beyond reasonable doubt should not, in my view, be unnecessarily complicated by attempting to direct the jury to consider the proposed evidence as tendency evidence. For those reasons, I will reject the application to treat the evidence as tendency evidence."
His Honour's reasoning did not expressly refer to the first aspect of the Crown's notice, namely, the cross-admissibility for tendency purposes of the evidence of the Third and Fifth Children concerning the counts in the Indictment relating to them. Nevertheless, the decision operated as a rejection of all that the Crown sought in its notice.

[6]

The defence case

The nature of the case advanced by the defence at the trial has been described in [16] above. In conformity with that case, the applicant gave evidence denying the alleged indecent assaults.
He also gave evidence of the Rugby Ball Incident. He said that he had no recollection of stepping on the Fifth Child at any stage during that incident or of throwing the ball at his wife's chest. The defence case concerning it was effectively that the incident was no more than a scuffle that occurred in the context of the applicant disciplining his sons. The defence had asked the First Child in cross-examination whether her calling police on the night of that incident was something that had been organised between her and her mother beforehand, a substantial attack having been made on the mother in the course of her cross-examination. The defence contended that the timing of the Rugby Ball Incident, being the night before the family were due to move into their new house, was significant.
The applicant also gave evidence of his good character and called five character witnesses in support.
As well, he called evidence from a friend who gave evidence of the mother's bad language and other behaviour in the family home, and of conversations with the mother suggesting that she was attempting to hide property from the applicant and exclude him from living in the new house.
The defence also elicited from a witness called in the Crown case at the defence's request, evidence suggesting that the mother had a motive to organise the concoction of the allegations against the applicant. In furtherance of this approach, defence counsel had cross-examined the children and their mother about evidence they had given in the Local Court in relation to criminal proceedings against the applicant arising from the Rugby Ball Incident. Defence counsel put that there were significant inconsistencies between that evidence and the evidence they gave at the trial the subject of this appeal and attacked their credit by emphasising that they had not said anything in the Local Court about the alleged indecent assaults committed by the applicant.

[8]

The Defence's closing address

The summary of his case provided to the trial judge by the applicant and incorporated in the summing-up including the following contentions: 1. The First Child lied to the police and her conduct was in a number of respects inconsistent with that of someone who had been indecently assaulted by their father. 2. The Fifth Child lied when he said that he complained to his mother on each of the three occasions the subject of the counts concerning him and his failure to mention the alleged assaults in his police statement of February 2016 and in the Local Court proceedings was severely detrimental to his credit. Moreover, there were significant inconsistencies between his evidence and that of the First Child. 3. The Third Child's evidence was suspect because of the circumstances in which he first complained and of his failure to mention any indecent assault in his first interview with police. 4. The Fourth Child's evidence was inconsistent with that of the Third and Fifth Children and his evidence "about not only seeing the accused touch [the Fifth Child] about 150 times, but also complaining to his mother … on each of these occasions [was] plainly untruthful". 5. None of the allegations were made before the children's mother commenced Family Court proceedings against the applicant. She "poisoned the children against the accused, telling them lies, that he has not paid any money for their support" and the credibility of her evidence was adversely impacted by various financial matters that were put to her. Moreover, in an AVO application made as a result of the 29 January 2016 Rugby Ball Incident she made no mention of anything suggestive of sexual assaults within the family. 6. The "character witnesses called by the accused were distinguished responsible members of the community who each spoke with one voice of the high esteem [in] which they held the accused". 7. The applicant and his witnesses gave evidence that was convincing and which should be accepted.

[9]

The summing-up

The summing-up was largely, if not wholly, drafted by the Crown, at the trial judge's request. Its terms were agreed with defence counsel subject to some limited, presently irrelevant exceptions. During a break in delivery of the summing-up, defence counsel raised some matters with the trial judge but none bore on the presently proposed Grounds 1 and 2. Counsel confirmed that he had nothing further to raise after the summing-up concluded.
The trial judge noted in his summing-up that counsel had agreed that it was not necessary for him to review all the evidence in the case and that they had focussed in their addresses on the evidence upon which they relied. His Honour directed the jury that it was nevertheless obliged to consider all of the evidence.
His Honour gave the following directions concerning context evidence: "Context evidence 16 I turn to a topic which is described as context evidence. You have heard evidence in the trial of other occasions, apart from those relating to any particular [count], where the children have alleged that the accused was aggressive and hurt them. In the case of [the Fifth Child], he said that the accused punched him, kicked him, and smacked him. You have also heard evidence from [the Third Child] that the accused was violent and rough, and [the First Child] said that he was aggressive towards her brothers. That evidence has been placed before you to assist you in understanding the relationship that the Crown alleges existed between the accused and the complainants, his children, in 2015. The Crown has placed that evidence before you also to explain the delay in complaints made by [the First Child] and [the Third Child] and I will refer to that evidence later. 17 Obviously, before you can convict the accused in respect of any charge you must be satisfied beyond a reasonable doubt that a particular allegation occurred. That is, the Crown must prove the particular act as alleged by the complainant. In addition to the evidence led by the Crown specifically in relation to the counts on the indictment, the Crown has led evidence of other acts of alleged misconduct by the accused towards [the Fifth Child]. I shall, for the sake of convenience, refer to this evidence as evidence of other acts. 18 The evidence of the other acts is as follows; first there were two acts of the accused allegedly touching [the Fifth Child], on the penis, in the bathroom and downstairs, allegedly witnessed by [the Third Child]. Secondly, acts of the accused touching [the Fifth Child's] penis, in the bathroom ensuite, allegedly witnessed by [the Fourth Child]. So, context evidence is background evidence which explains the complainants' conduct by putting it in a realistic context. The Crown says that these occasions, which are different to the ones described by [the Fifth Child], have been placed before you to understand the nature or the context of [the Fifth Child's] allegations. 19 The Crown also relies on the evidence to deal with the assertions made by [the accused] of concoction of evidence. I must give you some important warnings with regard to the use of this evidence of other acts, that is, acts that are not the subject of a charge. Firstly, you must not use evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. You cannot act on the basis that he is likely to have committed the offences charged because there are other allegations against him. The evidence has a very limited purpose, as I have explained to you, and it cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges have been proved beyond a reasonable doubt. 20 Secondly, you must not substitute the evidence of other acts witnessed by [the Third Child] and [the Fourth Child] for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct by the accused, but has brought particular allegations arising from what [the Fifth Child] says was sexual misconduct. You are concerned with the particular and precise occasions alleged by [the Fifth Child]. You must not reason that just because the accused may have done something wrong to [the Fifth Child] on some other occasions witnessed by [the Third Child] or [the Fourth Child]. He must have done so on the occasion alleged in the indictment. You cannot punish the accused for other acts attributed to him by [the Third Child] or [the Fourth Child], by finding him guilty of any charge on the indictment. Such a process of reasoning would amount to a misuse of the evidence and would not be in accordance with the law."
His Honour gave a separate consideration direction to the jury as follows: "48 As I said to you at the start, there are ten separate trials being conducted here. There are ten counts. The trials are being heard together for convenience, because there are a number of common parties, in relation to the complainants and the accused, but you must give separate consideration to each count. That means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts, if there is a logical reason for that outcome. If you were to find the accused not guilty on any count, particularly if that was because you have had doubts about the reliability of the evidence of one or all of the complainants then you would have to consider how that conclusion affected your consideration of the remaining counts in relation to that complainant."
His Honour then gave the jury the following directions concerning the character evidence called by the parties: "Character 49 I turn to the question of character. The accused has called evidence to establish that he is a person of good character, and you have heard evidence from a number of witnesses who said that he is an honest person, and not a person likely to commit these offences. The Crown has led evidence to contest that assertion. The Crown led evidence of the three videos of the accused where the Crown says that he punched [the Fifth Child] in the stomach, put a pillow over [the Third Child's] face, and threatened to punch [the Third Child], as evidence to show that he was not a person of good character when it came to his children, and that he had a bad disposition towards his children. 50 Similarly, the Crown has put before you the evidence of the common assault of [the Fifth Child], where he was convicted of throwing [the Fifth Child] to the ground and treading on his arm and head; and the common assault of [the mother], where he threw a ball at her chest. This is done to rebut the suggestion that he is a person who is of good character and who, other than those two matters, has no prior convictions. The Crown says these events depict the accused as a person not of good character and a bad parent, and it says that this incident, along with the video, show that the father was trying to control disobedient children. Mr Russell said that this incident, along with the videos showed that [the accused] was trying to control disobedient children, and that he had no support from his wife. 51 It is necessary for you, bearing in mind the arguments that have been put on both sides on this issue, to have regard to the totality of the evidence relating to the character of the accused, and determine whether you consider that the accused is a person generally of good character. You may reason that such a person of good character is unlikely to have committed these offences as alleged by the Crown. A jury can use the fact that a person is of good character to support his credibility, and you may reason that a person of good character is less likely to lie or give a false account in giving evidence before you, or in giving an account of the events in question in answer to Police. Whether you reason that way is a matter for you to determine. 52 None of this, of course, means that good character provides the accused with some kind of defence. It is only one of many factors you are entitled to take into account in determining whether you are satisfied beyond a reasonable doubt of the guilt of the accused. The weight that you give to the fact that the accused is a person of good character is completely a matter for you, but you should take it into account in the way that I have indicated to you. 53 If, on the other hand, you do not accept that the accused is a person of good character, you cannot use the evidence called by the Crown on that issue to strengthen the Crown case. That is, you are not entitled to reason that because of the evidence led by the Crown on the issue of character, that he is more likely to have committed the offence charged against him. The Crown did not call the evidence and does not rely upon that evidence to establish his guilt. It was simply led on the issue of the accused's character and it would be improper of you to use that evidence for any purpose other than on the issue of whether he is a person of good character. 54 If, after considering the evidence on this issue, you find that he is not a person of good character, then you cannot decide that he is a person of bad character and use that finding against the accused. Indeed, if you are not satisfied that he is a person of good character, the law requires you to put all consideration of character out of your minds in determining whether you are satisfied beyond a reasonable doubt that he is guilty of the crime or the crimes charged. That is a direction of law that you are bound by your promises as jurors, to follow, during your deliberations."

[10]

Ground 1: The trial miscarried as a result of the jury not being warned as to the unavailability of tendency or propensity reasoning

The trial judge's directions to the jury of potential relevance to Grounds 1 and 2 are set out in [34]-[36] above. They can be summarised as follows: 1. Context evidence The evidence of the applicant's aggression towards his children (presumably including the three videos but not explicitly including the evidence relating to the Rugby Ball Incident) was relevant to assist the jury to understand the relationship between the applicant and his children and to explain the First and Third Children's delay in making complaints. 2. Uncharged acts The evidence of uncharged acts (being that of the Third and Fourth Children concerning assaults on the Fifth Child) was relied on by the Crown "to deal with the assertions made by [the applicant] of concoction of evidence" (Summing-Up at [19]) and was also relevant as context evidence to assist the jury to understand the nature and context of the Fifth Child's allegations but it was not to be used for tendency purposes, and was not to be substituted for the evidence of the charged acts in relation to the Fifth Child. 3. Charged acts - separate consideration The 10 counts in the Indictment were to be given separate consideration. 4. Character As to the evidence concerning the applicant's character (including the Crown's rebuttal evidence comprising the three videos and the evidence relating to the Rugby Ball Incident), his Honour directed that: 1. If the jury concluded that the applicant had a good character, it could use that conclusion to reason that the applicant's credibility was enhanced and he was less likely to lie, but good character was only one factor to be considered by the jury. 2. If the jury concluded that the applicant was not of good character, it had thereafter to disregard the character evidence and in particular could not use that conclusion for tendency purposes, that is, to reason that the applicant was more likely to have committed the charged offences.
Putting aside for the moment the Crown's contentions before this Court that no further directions were required by reason of defence counsel's conduct of the defence, the jury should in my view also have been directed that the evidence in relation to the various counts in the Indictment could not be used by it for tendency purposes in relation to other counts. That is, the jury could not reason that because the applicant committed one or more of the offences, he was more likely to have committed the others. This would have given effect to the trial judge's ruling on 20 February 2019 that the evidence could not be so used (see [21]-[23] above).
There is no universal rule that such an "anti-tendency" direction (also called a "tendency warning" or a "propensity warning") should be given where an accused is tried on multiple counts charging sexual offences and leave has not been given under s 97 of the Evidence Act to use the relevant evidence for tendency purposes. Where however there are multiple complainants and separate trials are not ordered, a tendency warning "will almost certainly be required" (KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [32]-[38]; and see [72], [114]-[116], [119], [131]-[134]). Such a direction is required where there is a significant risk that the jury will engage in impermissible tendency reasoning (Toalepai v R [2009] NSWCCA 270 at [48]-[49]).
For the following reasons that risk existed here: 1. In sexual assault cases, it is natural for a jury to use a conclusion about one or more charged offences to assist it in deciding whether another offence has been committed (DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206 at [31]). As the High Court said in R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 at [51], [58], where there are multiple complainants and there is "some feature of or about the offending which links the [offences against each complainant] together", evidence of charged or uncharged acts has a "very high probative value" which "results from ordinary human experience". The prospect of the jury engaging in tendency reasoning as between the complainants and counts was therefore significant and it was important that it be directed not to do so (Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12). 2. In the present case the jury was given anti-tendency directions in relation to the evidence of the uncharged acts and in relation to the Crown's good character rebuttal evidence but was not given any comparable direction in relation to the evidence of the charged acts. This left it open to the jury to infer that there was no prohibition on it engaging in tendency reasoning between the charged acts, whichever of the complainants was concerned. 3. The trial judge specifically considered and ruled against cross-admissibility between complainants (other than the First Child) (see [22]-[23] above), and between charges relating to particular complainants, on the ground that otherwise the applicant would be unfairly prejudiced. Having found that, his Honour should have instructed the jury in a manner consistent with his ruling. 4. The giving of appropriate directions to the jury was of particular importance in the present case because, as the fundamental issues at the trial turned largely on the credibility of witnesses, the opportunity for appellate intervention was and is limited (see in relation to Ground 3 below). The proper instruction of the jury in these circumstances was essential.
An assumption that in general "juries understand, and follow, the directions they are given by trial judges" is fundamental to the administration of justice (Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]; Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 at [42]). An assumption that directions in a particular case are too complex for a jury to follow and apply should not therefore readily be made, although it must be accepted that directions may not be able in particular circumstances to overcome prejudice to the accused (Wilde v The Queen (1988) 164 CLR 365 at 373-374; [1988] HCA 6; Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [129]). If that is thought to be the case, the alternative is not to abandon the giving of relevant directions and to leave the jury to its own devices, but to order separate trials.
Ordinarily, a ruling denying cross-admissibility for tendency purposes of evidence relating to multiple counts, at least where multiple complainants are involved, results in an order for separate trials because of the difficulty of confining the jury to permissible non-tendency reasoning (De Jesus v The Queen (1986) 61 ALJR 1 at 2-3; [1986] HCA 65; Sutton v The Queen (1984) 152 CLR 528 at 531, 539, 542-4, 561 and 569; [1984] HCA 5; Hoch v The Queen (1988) 165 CLR 292 at 294; [1988] HCA 50; Bauer at [88]; Decision restricted [2019] NSWCCA 166 at [184], [196]; Decision restricted [2019] NSWCCA 276). Indeed, in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [171]-[172] Nettle J took the view that a separate trial was essential in such a situation because of the complexity of the directions that would otherwise have to be given.
In the present case none of the charges against the applicant was however tried separately. In such circumstances and bearing in mind the trial judge's ruling precluding tendency reasoning, it was in my view incumbent on the trial judge, by giving appropriate directions, to attempt to ameliorate, as far as he could, the potential prejudice to the applicant which he had found existed. Undoubtedly that would have resulted in a complex set of directions for the jury but that would have been an inevitable consequence of the judge's ruling against cross-admissibility and the absence of an order for separate trials. Whilst other judges may well have reached a different conclusion to the trial judge about whether cross-admissibility of evidence should have been permitted, the trial judge's conclusion cannot be ignored because it was not sought to be challenged on appeal.
Even if, contrary to my opinion, the view were taken that the judge's ruling against the use of evidence for tendency purposes should be disregarded, and even if it should be assumed that the parties acquiesced in the jury engaging in tendency reasoning, the trial judge's directions would still have been deficient due to the absence of a tendency (as distinct from anti-tendency) evidence direction along the lines of that set out in the Judicial Commission of New South Wales Criminal Trial Courts Bench Book (2019) at [4-227]. Such a direction would have explained to the jury the way in which it could use the evidence and in particular would have emphasised that before using the evidence for tendency reasoning it had to find, first, that the acts upon which the reasoning was to be based had in fact occurred and, secondly, that the acts indicated the existence of the tendency alleged by the Crown. In the absence of that direction, the jury was left to engage in tendency reasoning without proper guidance.
I add that I do not consider that a Murray direction (see R v Murray (1987) 11 NSWLR 12) that the trial judge gave in his summing-up affects these conclusions. By that direction, his Honour instructed the jury that the child allegedly assaulted was the only witness in relation to the events the subject of each count, with the result that for each count the jury had to be satisfied that that child was an honest and accurate witness in order to convict.
This direction did not in my view instruct the jury, certainly not in any clear fashion, that it could not use tendency reasoning as between the counts in deciding whether to accept the evidence of a child in relation to a count concerning him or her as honest and accurate.

[11]

Trial counsel's conduct of the defence case

On appeal, the Crown submitted that defence counsel was unconcerned at the trial about the admission of evidence of uncharged acts, indicating his view that such evidence was not prejudicial to the applicant's interests and suggesting that he was equally unconcerned about the cross-admissibility of evidence of charged acts. The Crown supported this submission by the following references: "a. The Crown Prosecutor made clear, before calling [the Fourth Child], that [the Fourth Child's] evidence was only being pressed by the Crown as tendency evidence … Defence counsel said that "[r]egardless of the tendency argument", they required the Crown to call [the Fourth Child] … b. The Crown repeated at trial its position that [the Fourth Child's] evidence was only admissible as tendency evidence … and defence counsel repeated the defence position that they required [the Fourth Child's] evidence to be admitted "as all part of the circumstances the whole picture we want - I mean it's an unusual situation I know but that's what we want to do" … c. The Crown raised the same issue before [the Third Child's] evidence was played, noting that [the Third Child's] observations of assaults on [the Fifth Child] was only pressed as tendency evidence. Defence counsel confirmed that he wished the evidence to be played and the question of tendency to be left to the conclusion of the evidence ... Defence counsel did not want the jury directed in any terms about that evidence at that point as it would be confusing … d. Defence counsel cross-examined in, through [the mother], an allegation made by [the First Child] that the applicant would come into the bathroom while she was naked and in the shower and not leave …"
The Crown submitted that the explanation for this approach was that defence counsel was running a positive case of concoction of the Crown evidence and that, as he explained to the trial judge when giving reasons for not seeking a separate trial, defence counsel considered that "tactically" all the relevant evidence could go in. The Crown submitted that it was clear from what defence counsel said that, to pursue the concoction defence, he wanted the jury to assess the evidence of the various witnesses as a whole. This was evidenced by defence counsel's repeated submissions to the jury, in both opening and closing addresses, that they should "join the dots" across the whole of the evidence to conclude that the mother had poisoned her children against their father and that each of the complainants was lying at the mother's behest. The Crown submitted that it would not have assisted this defence case for an anti-tendency direction to be given to the jury as it would have contemplated the possibility that the jury might examine the evidence of the complainants separately and find that one of the complainants was telling the truth. The direction itself might thus have suggested to the jury the possibility of it engaging in tendency reasoning. The Crown referred in this regard to McHugh J's caution in KRM at [37] that an anti-tendency direction may "even suggest the very train of reasoning that a propensity warning is designed to overcome". However, the caution in KRM is of little relevance to the present case as it can be concluded here that the jury would have been likely to engage in tendency reasoning unless told otherwise (see [40] above).
On appeal the Crown also emphasised that at trial defence counsel placed considerable weight on the evidence of good character that he called on behalf of the applicant. Defence counsel indicated to the trial judge that he proposed to call that evidence notwithstanding his appreciation that the Crown would be able to call good character rebuttal evidence, including as to the Rugby Ball Incident. Such rebuttal evidence was, as the trial judge subsequently instructed the jury, only able to be used by the jury in a limited way, and not for tendency reasoning (see [36] above). The Crown submitted on appeal that defence counsel would have appreciated that if the jury had been given an anti-tendency direction in relation to the evidence of the complainants concerning the various counts, the Crown could have sought and obtained an additional direction that that evidence could nevertheless be used in rebuttal of the applicant's good character evidence. That additional direction was however in fact given (see [36] above). As was appropriate, the direction indicated that the evidence could not be used for a tendency purpose but only used in the limited way referred to in [36] above.
Finally, the Crown submitted on appeal that, like the Crown, defence counsel was actively involved in drafting and settling the summing-up and sought jury directions that he perceived were necessary. It submitted that the result was that this Court cannot infer that defence counsel's failure to seek the directions the subject of this ground of appeal was a result of oversight.
On appeal, the applicant's counsel did not accept the Crown's submission that it appeared from the trial record that there were good forensic reasons for trial counsel not to seek the relevant directions but he also eschewed the proposition that the applicant's trial counsel acted incompetently. He accepted that r 4 of the Criminal Appeal Rules applied because the relevant directions had not been sought at the trial but sought leave under that rule to complain of their absence. He submitted in this regard that the absence of such directions raised a real prospect that there was a miscarriage of justice at the trial.
It follows from the oft-cited decision in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72], and subsequent authorities, that where an accused has not sought a relevant direction, leave under r 4 to complain on appeal of the absence of the direction will only be granted if the applicant persuades the court that there may have been a miscarriage of justice. As explained in ARS v R [2011] NSWCCA 266 at [148], the applicant "must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted" and that the absence of objection by defence counsel is usually an indication that, in the atmosphere of the trial, counsel saw no injustice in what occurred. Where defence counsel has made a rational tactical decision to avoid a forensic risk, the court will not ordinarily conclude that the accused's trial has been unfair in this sense (see TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [16]-[17]; [32]-[33]).
As it is in relation to the application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (as to which see Wilde at 371-373), the ultimate question for this Court in relation to the grant of r 4 leave must be whether the accused received a fair trial. Even where the manner in which the trial was conducted accorded with the concurrence or acquiescence of defence counsel, the trial may have been unfair due to a fundamental defect in it. Irrespective of the conduct of defence counsel, the trial judge has an independent obligation to ensure the trial's fairness (Pemble v The Queen (1971) 124 CLR 107 at 117-118; [1971] HCA 20; James v The Queen (2014) 253 CLR 475; [2014] HCA 6 at [24], [38]). A recent illustration of this principle is Decision restricted [2019] NSWCCA 234 in which, despite defence counsel seemingly having made a forensic choice not to seek a direction by the judge to the jury as to the accused's alleged lies, this Court concluded that the trial was unfair due to the absence of such a direction (at [3]-[4], [138]-[155]; see also R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 at [56]-[57]; Decision restricted [2019] NSWCCA 166 at [194]).
In the present case, it is not possible to form a firm view as to whether the applicant's trial counsel made a calculated forensic decision not to seek the relevant directions. The matters to which the Crown referred in this regard (see [47]-[49] above) suggest that the experienced counsel might have done so. On the other hand, the Crown's and trial judge's apparent oversight of the need for such directions raises the possibility that defence counsel may have overlooked it as well. Whatever may however be the position in this regard, I nevertheless consider that the absence of the relevant directions rendered the trial unfair. The matters to which I referred above in relation to the risk of the jury engaging in tendency reasoning of its own volition (see [40] above) are significant in this regard. As I have indicated, use of the relevant evidence for tendency purposes had strong probative value and there was a substantial risk that the jury would have engaged in it. Furthermore and of fundamental importance to the outcome of the applicant's application for leave to appeal is that in an unchallenged decision made during the course of the trial, the trial judge ruled that it would be unfairly prejudicial to the applicant for the trial court to permit the jury to engage in the relevant tendency reasoning. The fact that in these circumstances there were no directions to the jury not to do so in my view rendered the trial unfair. As a result, Ground 1 should be upheld.
I note in conclusion in relation to Ground 1 that the Crown did not submit that if Ground 1 were upheld leave to appeal should nevertheless be refused (or, if leave were granted, the appeal should be dismissed) by reason of the proviso to s 6(1) of the Criminal Appeal Act. Such a submission would not in any event have availed the Crown in light of my conclusion that the trial was unfair (see Patel at [125]-[130]).

[15]

c. The directions to the jury in relation to bad character

The applicant's written submissions in relation to this ground raised two preliminary points.
First, the applicant referred to s 112 of the Evidence Act requiring leave to be obtained before an accused is cross-examined about his character. The applicant accepted however that, in light of the manner in which the trial proceeded, there was an implicit grant of leave as a result of the acquiescence of the parties in what occurred. In these circumstances, there was, contrary to the applicant's assertion, no need for the trial judge to give reasons or state whether any of the matters listed in s 192(2) of the Evidence Act were taken into account. The absence of any complaint by the applicant at the trial in this context in any event precludes him raising the issue on appeal.
Secondly, the applicant contended that admission of evidence of the applicant's convictions in the Local Court in relation to the Rugby Ball Incident infringed the prohibition in s 91 of the Evidence Act against the use of a decision of an Australian court to prove the existence of a fact that was in issue in that proceeding. An immediate answer to this proposition is that s 91 did not preclude the evidence's admission because it was not objected to, the better view being that the references in the Evidence Act to evidence being "not admissible" are to be understood as meaning "not admissible over objection" (Perish v The Queen (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[271]; see also Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [54]-[56]). In any event, the Crown was entitled to tender evidence of the convictions in rebuttal of the applicant's good character evidence and the facts relating to the Rugby Ball Incident were led to enable the jury to form its own views about what occurred. The evidence of the convictions was thus not relied upon to prove the applicant's guilt of the offences charged against him in the Local Court, and therefore was not contrary to the terms of s 91 (see Attorney General (NSW) v Martin [2015] NSWSC 1372 at [13] per Simpson J).

[16]

Ground 2(b): the trial miscarried as a result of the nature, extent and manner in which the "bad character" evidence was adduced

The sequence of events at the trial relating to evidence of the Rugby Ball Incident, with which this sub-ground of appeal is principally concerned, was as follows: 1. At the preliminary hearing before Judge Traill in December 2018, the Crown indicated that it relied on evidence of the Rugby Ball Incident as evidence of aggression by the applicant towards his children, tending to explain their delay in complaint. 2. Subsequently, the evidence of the applicant's convictions in the Local Court in relation to the Incident became relevant as rebuttal evidence when the applicant raised his good character. 3. In discussion with the bench in February 2019 before the jury was empanelled, defence counsel told Williams DCJ that the defence understood that "the Crown would want to try to rebut our good character by issues such as the convictions". 4. On the day the trial commenced, 5 February 2019, defence counsel said that, as the defence was relying on good character, he was "quite content" for the Crown to lead evidence of the "two common assault matters", that is, the Rugby Ball Incident. 5. In opening to the jury, the Crown referred briefly to the Rugby Ball Incident and, in his opening, defence counsel referred to the applicant's version of the incident, to the applicant's arrest by police and to the issue of an AVO against the applicant. 6. In its case the Crown led limited evidence of the Rugby Ball Incident from the mother and the four of her children who gave evidence, and each was cross-examined by the defence at length in relation to it. 7. The Crown also led from the police officer-in-charge of the investigation the fact of the applicant's convictions and it tendered certificates of the convictions. 8. In closing address, the Crown indicated the limited bases (referred to in [13] above) upon which relied it on the evidence of the Rugby Ball Incident and the convictions. 9. In his closing address, defence counsel referred extensively to the evidence concerning the Rugby Ball Incident as support for the applicant's case.
The evidence concerning the Rugby Ball Incident and the convictions arising out of it was thus led by, or with the concurrence of, defence counsel. That evidence was an integral part of the defence that counsel mounted on behalf of the applicant. In these circumstances, r 4 of the Criminal Appeal Rules in my view precludes the applicant making any complaint on appeal in this context. In contrast to the uncertain position concerning Ground 1, defence counsel's concurrence with the Crown's limited reliance on the relevant evidence and his own extensive reliance on it clearly arose out of considered forensic decisions made by defence counsel for the purpose of advancing his client's interests and there is no reason to conclude that those decisions deprived the applicant of a fair trial. They were rational decisions which arguably advanced his case in the best manner reasonably available.

[19]

Ground 3: The verdicts of the jury are unreasonable and cannot be supported having regard to the evidence

This Ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by this Court is "whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). As stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]), "the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt". In Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.
This Court must make its own independent assessment of the evidence. It must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) but, as stated in M v The Queen (at 494): "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, as in the present case, the jury's assessment of the principal witnesses was "vital" (at [23]). Notwithstanding imperfections in the evidence, including deficiencies in recollection and inconsistencies in the evidence, the Court in MFA dismissed the unreasonable verdict ground of appeal noting: "There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" (at [96]).
Having made an independent assessment of the sufficiency and quality of the evidence at the trial, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offences of which he was convicted. This was a trial which of necessity turned on the jury's assessment of the credibility of the witnesses. Their evidence, if accepted, clearly proved beyond reasonable doubt the offences of which the applicant was charged. Whilst there were, unsurprisingly, inconsistencies and imperfections in the evidence, none of them, whether taken individually or as a whole, suggest that the jury misused its very considerable advantage over this Court in having seen and heard the witnesses give their evidence and that it should have had a reasonable doubt concerning the applicant's guilt.
It is unnecessary to deal with all of the many credit matters raised by the applicant on appeal as they concern factual matters that were quintessentially matters for the jury's determination. The principal matters raised in relation to the three complainants were however as follows.

[27]

The Course of the Trial

To address this complaint, it is first necessary to review the course of the trial to ascertain the nature of the defence case, the approach adopted by the Crown and the applicant to the admission and treatment of the evidence of the applicant's children and the directions given to the jury by the trial judge.
In relation to the first matter, while counsel for the applicant reminded the jury of the obligation on the Crown to prove the accused's guilt on each charge beyond reasonable doubt, throughout the trial he made it clear the defence case was that the evidence of the applicant's children were lies orchestrated by his ex-wife. In cross‑examination it was put to her that she had "manipulated the children to lie", a proposition she denied ("No, never, never"). In his opening to the jury counsel for the applicant stated that he would repeatedly ask them to "join the dots", that being a reference to connecting the evidence of his ex‑wife and children to conclude that she was orchestrating a campaign of lies uttered by the children against him. In his final address, counsel suggested that the applicant's ex‑wife "ha[d] poisoned the children against their father so she can have maximum leverage in the [F]amily Court and inflict as much pain as possible on the accused".
In relation to the second matter, Macfarlan JA has described the Crown's application to adduce tendency evidence in [19] (the "tendency application") and the trial judge's ruling in [21] to [23].
The evidence of the applicant's children was recorded in the absence of the jury during hearings conducted in December 2018. The tendency application was argued before the trial judge on the second day of term the following year, namely, 5 February 2019. However, at the suggestion of counsel for the applicant, it was not resolved but was adjourned to be determined later in the trial. In the meantime, the jury was empanelled and the trial commenced. Argument over the tendency application resumed on 20 February 2019 which was just prior to the close of the Crown case. As the evidence the subject of the tendency application had already been adduced by then, the tendency application was directed to whether the Crown could deploy tendency reasoning and whether the trial judge would give the jury a tendency direction. As noted by Macfarlan JA, on that day the trial judge rejected what remained of the Crown's tendency application.
The trial judge's basis for the rejection of the tendency application was that the probative value of the evidence as tendency evidence did not substantially outweigh its prejudicial effect (Evidence Act 1995, s 101). The prejudice his Honour identified was that a tendency direction could mislead or confuse the jury in relation to the use of evidence "which is already in as context, and partly as character evidence" (see [22]). The reference to character evidence was to a submission by the Crown Prosecutor that the evidence of the uncharged acts was admissible to rebut the applicant's case on good character and hence no prejudice would be occasioned by allowing the Crown's application.
On the first day of argument on the tendency application, ie 5 February 2019, counsel for the applicant explained that he did not oppose, and in fact positively embraced, all the evidence sought to be adduced by the Crown being admitted but strenuously opposed the Crown being allowed to invoke tendency reasoning in relation to it ("[w]e've said all the evidence can go in"). This acceptance included both the evidence of uncharged acts and the evidence directed to each count on the indictment in that counsel for the applicant explained that, if the tendency application was rejected, a separate trial was not sought ("we of course didn't ask for a separate trial of any of these matters"). Counsel for the applicant told the trial judge that "we concluded that tactically all that evidence can go in" because he sought to take advantage of what was said to be inconsistences between the evidence of the Fifth Child and the evidence of the Third and Fourth Child concerning the conduct of the applicant towards the Fifth Child ("we want it in as all part of the circumstances the whole picture we want - I mean it's an unusual situation I know but that's what we want to do, we want it in as the whole picture for the jury").
This approach was entirely consistent with the defence case explained above. The applicant wanted all the evidence admitted so that he could invite the jury to "join the dots" and conclude that his ex-wife had manipulated his children to lie. At one point during argument on 5 February 20119, counsel for the applicant submitted: "And this evidence must in the context of its substantial inconsistencies must be in a position where it's going to cause confusion to a jury, rather than it just simply being led as part of the surrounding circumstances for the jury say to say this is the whole picture here and you take it at what you will but not for the Crown to get some direction that says that it's more likely that he effectively tells the jury it's more likely that this man has committed these offences as charged." (emphasis added)
The emphasised portion of this passage encapsulates the approach taken by counsel for the applicant to the admission of evidence from the applicant's children of other criminal acts by the applicant, namely, that the applicant was resistant to the Crown being able to rely on tendency reasoning but was otherwise content for the jury to receive the evidence as part of the "whole picture" and be told that, in effect, they could "take it at what you will".
The applicant's successful resistance to the tendency application was the stepping stone to his application to the trial judge for a "Murray" direction (see R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42 at [21]-[22]). In R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 at [32], Wood CJ at CL described a Murray direction as being "to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness 'must be scrutinised with great care' before a conclusion is arrived at that a verdict of guilty should be brought in". The trial judge's ruling on tendency cleared a possible obstacle to the applicant obtaining the Murray direction in that it meant that the only witness testifying to the individual counts on the indictment was the child who was the alleged victim of that count. The trial judge's tendency ruling meant that the evidence of the other children did not support that count even on a tendency basis.
In relation to the summing up, on the eighth day of the trial the trial judge noted that the High Court had just published its decision in McKell v The Queen [2019] HCA 5 ("McKell") which his Honour asserted "highlights the importance of a neutral agreed summing up". His Honour observed that if the summing up is "agreed ... then there can't be criticism". Thereafter the trial judge left it to counsel to draft the summing up for him. While McKell warns against a trial judge making personal observations on issues of fact (McKell at [5]), it says nothing about a summing up being "agreed". Although a trial judge can expect to receive assistance from counsel in the preparation of a summing up, the task of preparing it remains theirs and theirs alone. It cannot be delegated to counsel and, as this case makes clear, the fact that it is agreed does not make it immune from criticism. In any event, delivering a summing up that is immune from criticism by counsel at the trial is not an end in itself. It is certainly not a proper basis for a trial judge to abdicate their responsibility for the preparation of a summing up that explains the issues in the trial to the jury and gives directions as to the law to be applied.
Two weeks later on 26 February 2019, counsel for the applicant was close to completing his address. By that time draft(s) of the trial judge's summing up had been emailed between the Crown Prosecutor and counsel for the applicant. After counsel for the applicant completed his address, the Crown Prosecutor told the Court that she had included in the most recent draft of the summing up a direction to the effect that tendency reasoning should not be used in relation to the evidence of the uncharged acts (ie, an anti‑tendency direction). The proposed direction described that evidence as "context" evidence. Counsel for the applicant stated that he had only just had the opportunity to consider the most recent draft sent by the Crown Prosecutor but stated that he did not agree that the evidence of the uncharged acts was admissible as context evidence. He stated that, in light of the ruling on the tendency application, it was only led to rebut the applicant's evidence of good character. Both the Crown Prosecutor and the trial judge corrected him. As the extract from the submissions of counsel for the applicant set out above (at [94]) and the trial judge's ruling on the Crown's tendency application (at [92]) make clear, the premise of the argument that led to that ruling was that the evidence of the uncharged acts was admissible as context evidence.
Having had the possibility of an anti-tendency direction specifically brought to his attention, counsel for the applicant did not request that it be extended to include the evidence of the charged acts. Instead, in light of the trial judge's rejection of the Crown's tendency application, counsel for the accused pursued a Murray direction in relation to all ten counts. The Crown Prosecutor resisted the direction but his Honour determined that he would "err on the side of caution" and give it. Thereafter the trial judge delivered the "agreed" summing up.

[28]

The Summing Up

Four aspects of the summing up are relevant to the ground of appeal.
First, consistent with the above, the trial judge gave a direction in relation to the evidence of uncharged acts. The full direction is set out in the judgment of Macfarlan JA at [34]. In short, his Honour described the evidence of the uncharged acts committed against the Fifth Child as "context evidence" that is "evidence which explains the complainants' conduct by putting it in a realistic context". His Honour gave an anti‑tendency direction in relation to this evidence, that is his Honour warned the jury that they: "…. must not use evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. You cannot act on the basis that he is likely to have committed the offences charged because there are other allegations against him. The evidence has a very limited purpose, as I have explained to you, and it cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges have been proved beyond a reasonable doubt."
Second, as noted by Macfarlan JA at [35] his Honour gave a separate consideration direction. In particular, the jury was told that "there are ten separate trials being conducted", that they "must give separate consideration to each count" and, if it found the applicant not guilty on any count, then it "would have to consider how that conclusion affected your consideration of the remaining counts in relation to that complainant".
Third, his Honour gave the jury the character direction set out by Macfarlan JA at [36]. Curiously, that direction did not refer to the evidence of the Third Child and Fourth Child concerning the uncharged acts (said to have been) committed on the Fifth Child as rebutting the evidence led by the applicant as to his good character, even though that had been foreshadowed by the Crown Prosecutor when arguing the tendency application.
Fourth, consistent with the ruling noted above, the trial judge gave the jury a Murray direction as follows: "You have to exercise caution before you could convict the accused on any count because the Crown case largely depends on you accepting the reliability of a single witness. For example, [the First Child] is the only witness to the events that make up the counts on the indictment for her allegations, other than count 3 where her mother says she saw the accused in her bed. On the Crown case [the Fifth Child] was the only witness to the events that he describes, and [the Third Child] is the only witness regarding his allegations. That being so, unless you are satisfied beyond a reasonable doubt that [the First Child, the Fifth Child, and the Third Child], are both honest and accurate witnesses in the accounts that they have given you cannot find the accused guilty. Before you could convict the accused you should examine the evidence of the complainants very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial … In considering the complainants' evidence in each case and whether it does satisfy you of the guilt of the accused you should, of course, look to see if it is supported by any other evidence." (emphasis added)

[29]

Miscarriage of Justice and Anti Tendency Direction

As noted, ground 1 of the appeal contends that the trial miscarried by reason of the failure of the trial judge to warn the jury "as to the unavailability of tendency reasoning" in relation to the evidence of the charged acts. As no direction to that effect was sought by counsel for applicant the trial judge was not required to rule on it. It follows that this complaint does not involve any alleged "wrong decision of any question of law". Instead it is a contention that "on any other ground whatsoever there was a miscarriage of justice" (Criminal Appeal Act 1912, s 6(1)). Three related issues arise in relation to that contention, namely, whether the direction was required, whether the failure to give the direction amounted to a miscarriage of justice and, as no direction to the effect contended for was sought at the trial, whether leave to raise this ground should be granted under rule 4 of the Criminal Appeal Rules?
In seeking affirmative answers to all three of these questions, counsel for the applicant placed particular emphasis on the following passage from the judgment of McHugh J in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [38] ("KRM"): "In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. An example such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts … Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice ... But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought ... If that occurs, a propensity warning will almost certainly be required." (emphasis added)
As KRM involved evidence of charged and uncharged acts against the one victim, the last part of this passage was not essential to the reasoning of McHugh J in that case, who, in any event, dismissed the offender's appeal. Gummow and Callinan JJ stated that while "[i]t will often be right for a trial judge in a case of multiple sexual offences" to give an anti-tendency direction, "[n]o universal rule should, or indeed, may be laid down" (at [72]). Kirby J was of a similar view although his Honour held that a direction was required in KRM's case principally because the substantive offences charged involved both an offence of maintaining a sexual relationship with a child under the age of sixteen and specific sexual offences (at [116] and [117]). Hayne J held, inter alia, that the fact that there are multiple counts included in the one presentment does not necessarily give rise to a requirement that a propensity direction be given and that "[g]enerally, the separate consideration direction is sufficient warning against misusing evidence of other charged acts" (at [133]).
In Toalepai v R [2009] NSWCCA 270 ("Toalepai"), it was contended that a miscarriage of justice was occasioned as a result of the trial judge not directing the jury that they should not use tendency reasoning in relation to evidence of the child complainant that the accused sexually assaulted her "[e]very time my mum went shopping". Howie J, with whom Macfarlan JA and Hislop J agreed, rejected the contention that "the failure to give a tendency warning where there is any evidence of misconduct falling outside the scope of the charges in the indictment results in a fundamental defect in the trial" (at [47]). Instead, his Honour concluded that "each case should be considered on its own facts and an assessment of whether a tendency warning was required as a matter of law in the particular circumstances of the case will depend upon whether there was a significant risk that the jury might have embarked on impermissible tendency reasoning having regard to the evidence placed before it and the arguments of counsel" (at [49]).
In Jiang v R [2010] NSWCCA 277 ("Jiang"), R A Hulme J, with whom Simpson and Hoeben JJ agreed, referred to Toalepai and concluded that the need for a warning depended on "whether there was a 'real risk', a 'significant risk' or a 'possibility' of the jury using the evidence of the uncharged acts in an impermissible way and to the detriment of the appellant" (at [44]). This language of risk and possibility reflects the statement by McHugh J in BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47 ("BRS") that "a miscarriage of justice has occurred if there is a real chance that the jury may have convicted the accused by a chain of 'forbidden reasoning', to use the phrase of Lord Hailsham in Boardman v Director of Public Prosecutions [[1975] AC 421 at 453]" (at 306).
Both Toalepai and Jiang concerned whether a warning was required in relation to evidence of uncharged acts. Lyndon v R [2014] NSWCCA 112 ("Lyndon") concerned evidence led in support of multiple counts and different victims. In Lyndon it was contended, inter alia, that a trial judge should have directed the jury that it could not use the evidence of acts alleged against one child complainant as "tendency evidence" with respect to the acts against the other child complainant in a case where the appellant faced trial in respect of child sexual assault charges against two victims, although the alleged assaults occurred within minutes of each other. No direction was sought at the trial and this Court refused leave to raise the complaint on appeal under rule 4 of the Criminal Appeal Rules (Lyndon at [66] per Basten JA with whom Button J and RS Hulme AJ agreed).
In Lyndon, Basten JA found that the passage from the judgment of McHugh J in KRM set out above was of "little assistance in the present case" because, inter alia, it was referable to "cases … [where] … some feature of the evidence" creates a risk of the jury using tendency reasoning, KRM predated the Evidence Act and other members of the High Court in KRM referred to the necessity to give such a warning in different terms (at [60] to [61]). In concluding that such a warning was not necessary in Lyndon, Basten JA stated (at [65] to [66]): "This was not a case in which the jury was likely to reason impermissibly on the basis of a tendency to act in a particular way. The important warning, which was given on more than one occasion, was that each offence should be considered separately and the jury be satisfied beyond reasonable doubt as to the allegation in each case. That this was how the evidence was presented, and how counsel dealt with the evidence in their addresses, as well as the manner in which the trial judge dealt with it in summing up, is confirmed by the verdicts. … No objection was raised to the failure to give a warning as to tendency evidence at any stage in the course of the trial. Accordingly, the ground cannot be relied upon without leave: Criminal Appeal Rules, r 4. The failure to request such a warning is consistent with the inference drawn above, namely that no party in the course of the trial thought that such a warning was necessary. Leave to rely upon ground 3 should be refused." (emphasis added)
In Erohin v R [2006] NSWCCA 102 ("Erohin"), James J (with whom Simpson and Hall JJ agreed) described the majority judgments in KRM as "support[ing] the proposition that there is no absolute rule that a trial judge should always warn a jury against propensity reasoning, in a case where propensity reasoning would not be permissible" (at [68]). In that case the appellant was the complainant's neighbour and was convicted of breaking into her home and raping her. The complainant gave evidence of persistent sexual harassment amounting to indecent assault committed against her by the appellant at her work place (at [14]). On appeal it was submitted, inter alia, that an anti‑tendency direction should have been given in relation to that evidence. James J observed that, leaving aside rule 4, "it is of some significance that it did not occur to counsel for the appellant at the trial that such a direction was necessary" (at [68]). His Honour did not accept that the anti‑tendency direction was necessary given that the evidence of the other sexual misconduct was "brief", lacking in detail and there was no risk that it could be confused with or substituted for the conduct charged on the indictment ([id]).
It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount to a miscarriage of justice for the purposes of applying rule 4 or satisfying the third limb of s 6(1) of the Criminal Appeal Act. Instead, whether such a direction is required and whether a miscarriage of justice is occasioned by reason of the failure to give such a direction requires an assessment of the likelihood or risk of the jury having engaged in tendency reasoning (Toalepai; Jiang; Lyndon). Ultimately, whether a miscarriage of justice has occurred will depend on whether there was a "real chance" (BRS at 306), "it was likely that" (Lyndon at [65]) or there was a "significant risk" (Toalepai at [49]) that "forbidden reasoning" would be or was employed (BRS at 306). The assessment of that risk will be undertaken by reference to, inter alia, an analysis of how the respective cases were conducted and the effect of other directions given by the trial judge such as the separate consideration direction referred to in the above passage from Lyndon (at [66]) and by Hayne J in KRM (at [133]) (Lyndon; Toalepai). Further, in making an assessment of the risk that the jury might engage in tendency reasoning in the absence of an anti-tendency direction, the failure of counsel for the applicant at the trial to seek such a direction can affect an assessment of the likelihood that the jury would reason impermissibly in the absence of an anti‑tendency direction (Lyndon at [66]; Erohin at [68]; and see generally ARS v R [2011] NSWCCA 266 at [148]).

[30]

No Necessity for a Direction and No Miscarriage of Justice

The effect of ground 1 is that the trial judge should have directed the jury that, in respect of the counts on the indictment concerning a particular child, the jury could not use the evidence of another child supporting the counts in respect of that other child as establishing a tendency on the part of the accused to commit offences of the type charged and they could not reason that the applicant is the type of person who would commit the offences with which he has been charged. In this Court, counsel for the applicant submitted that, in the absence of such a direction, there was an unacceptable likelihood of the jury using tendency reasoning especially given the broadly similar nature of the allegations made by the Third Child and the Fifth Child against the applicant.
I do not accept that contention. In light of the separate evidence direction and the Murray direction, I consider that the potential for that reasoning to have been engaged in was much diminished. The jury was told to give separate consideration to each count. Most importantly they were told that each of the First, Third and Fifth children were the "only witness[es]" to the events concerning the counts for that child and the jury had to be satisfied of the honesty and accuracy of the evidence of each of those children in relation to the counts that concerned them before they could convict the applicant on those counts. This very much limited the evidence that the jury could consider in relation to each count to evidence that directly supported the honesty and reliability of the alleged victim of that count.
Counsel for the applicant submitted that both the separate consideration direction and the Murray direction given in this case were not sufficient to ameliorate the risk of the jury engaging in tendency reasoning. It was submitted that the separate consideration direction did not explain what evidence was admitted in relation to the "ten separate counts" and the Murray direction did not make it clear to the jury that "no kind of tendency or propensity reasoning could form part of their 'careful and cautious' assessment of a particular complainant's credibility". It was submitted that the nature of the defence case, being that the children were participants in an orchestrated campaign of lying, made it more likely that the jury would use tendency reasoning.
I disagree. Along with the separate consideration direction the jury was given a written document that set out the specified elements of the offence and the act said to constitute the offence, which corresponded with the evidence of the child said to be the victim of that offence. Most significantly, the Murray direction precluded a juror from reasoning that they could convict the accused on any count concerning a particular child even though they had doubts about the honesty and accuracy of the evidence of that child because of their acceptance of the evidence of another child and what that evidence might demonstrate about the applicant's tendencies or propensity. The effect of the Murray direction was that, unless the jury were positively satisfied that the relevant child was an honest and accurate witness, then they could not convict the applicant on the counts that related to that child.
Nevertheless, there remained at least a theoretical risk that the jury might reason from, say, its acceptance of the evidence of the Third Child that they should conclude that the Fifth Child's evidence was honest and accurate because the former's evidence suggested that the applicant is the type of person who would commit the offences with which he is charged and that might support a conclusion that the Fifth Child's evidence that the applicant committed offences against him was honest and accurate. However, in the context of the applicant's trial, I do not regard that risk as sufficiently material to give rise to any obligation on the part of the trial judge to give the anti‑tendency direction or that any failure to do so was a miscarriage of justice. To use the language of Basten JA in Lyndon, "[t]his was not a case in which the jury was likely to reason impermissibly on the basis of a tendency [of the applicant] to act in a particular way" (at [65]).
Of relevance to that assessment is the conduct of counsel for the applicant at this trial (Lyndon at [66]; Erohin at [68]). I consider it clear that counsel for the applicant's failure to seek an anti-tendency direction in relation to the evidence supporting the charged acts was deliberate in the sense that he did not consider that such a direction was necessary given the Murray direction and the manner in which the defence case was put. Counsel's position from the outset was that he did not want separate trials for his client and was content for all the evidence to go in and the jury be left to "take it at what you will", provided that the Crown did not obtain a tendency direction. He wanted all the evidence admitted and a joint trial on all counts so that he could invite the jury to "join the dots". It is true that the Crown included an anti-tendency direction in relation to the evidence of the uncharged acts and he acquiesced. However, that direction was of particular importance in this case because, absent an explanation of what that evidence could and could not be used for, the jury would have been left to speculate as to what the purpose of that evidence was. However, that concern did not apply to the evidence of the charged acts. It was clearly led to prove the counts on the indictment and that was reinforced by the separate consideration direction (KRM at [66] per Hayne J).
The combined effect of the Murray direction and the absence of a tendency direction meant that the Crown case in respect of each count was confined to having the jury being required to accept that the relevant child was honest and accurate in their evidence and to scrutinise each of their evidence carefully. In contrast, counsel for the applicant was free to, and did, invite the jury to "join the dots" and conclude that each of them (and their mother) were lying. In that context, the risk that the jury might, consistently with the Murray direction, reason from their acceptance of the honesty and accuracy of one child's evidence, that the applicant is the type of person who would commit the offences with which he is charged and use that conclusion to support a finding that the Fifth Child was honest and accurate was remote. As stated, the deliberate failure of the applicant's counsel to seek an anti‑tendency direction in relation to the evidence supporting the charged acts supports that conclusion (Lyndon supra). Given the defence case that the children were party to an orchestrated campaign of lies, the most likely paths of reasoning that were adverse to the applicant and consistent with the directions given to the jury did not involve tendency reasoning. These paths of reasoning were a rejection of the existence of any such manipulation by the applicant's ex‑wife and a separate assessment of each child's evidence to the effect that they were honest and reliable, or an acceptance of the honesty and reliability of the evidence of one child as a basis for rejecting the applicant's evidence which might then impact on an assessment of the honesty and reliability of the evidence of the other children. Neither of those paths of reasoning involves tendency reasoning.
In addition, in this Court counsel for the applicant submitted that the fact that the trial judge rejected the Crown's application to rely on tendency evidence on the basis of the prejudicial effect of the evidence provided "important context in considering the magnitude of the risk of miscarriage attached to the jury subsequently embarking on an impermissible process of tendency reasoning" unless they were instructed to the contrary. I disagree. The prejudice identified by the trial judge was some alleged confusion that might arise from having to "attempt to have the jury compartmentalise" the evidence, that is use it in different ways. With respect to the trial judge that is not a relevant form of prejudice. In any event, that form of "prejudice" is irrelevant to any assessment of the likelihood of the jury applying tendency reasoning to evidence of the charged acts when they also received a separate consideration direction and a Murray direction.
Finally, I note that the Crown submitted that the failure on the part of counsel for the applicant to seek an anti-tendency direction secured the applicant two particular forensic advantages. The first was that it avoided the possibility that an anti-tendency direction might have discouraged the jury from treating a finding that one complainant was lying, at the behest of their mother, as a basis for concluding that another child was lying, at the behest of their mother, that being the essence of the defence case. I doubt that explains the approach of counsel for the applicant at the trial. If it did then it can be expected that counsel would have resisted the anti-tendency direction that was given in relation to the uncharged acts, which he did not. The second forensic advantage was that it was contended that, if an anti-tendency direction was given, it might have had to have been qualified by a direction to the effect that the jury could treat the evidence of one or more children in support of the charged acts as affecting their treatment of the accused's good character evidence. Again, I do not accept that. As noted, even though in the submissions in support of the Crown's tendency application, the Crown Prosecutor referred to the uncharged acts as undermining the applicant's reliance on good character, the character direction that was drafted by both counsel made no reference to the uncharged acts. Notwithstanding these conclusions, for the reasons set out above, I am satisfied that the failure of counsel for the applicant to seek an anti-tendency direction was deliberate. The significance of that finding to the ground of appeal has already been explained.

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